A Durable Power of Attorney (DPOA) is a document that allows someone you choose (an “agent” or “attorney-in-fact”) to make certain decisions for you or act on your behalf, even if you become incapacitated.
A durable POA remains valid until your death or until you actively revoke it. The critical attribute of this document is that it remains “durable” (enforceable) even if you become mentally or physically incapacitated.
This allows your appointed agent to act on your behalf during those challenging times and will care for your personal and financial affairs or make healthcare decisions if you cannot manage them yourself.
Durable Power of Attorney – By State
- District of Columbia
- New Hampshire
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Rhode Island
- South Carolina
- South Dakota
- West Virginia
Durable Power of Attorney – By Type
What is a Durable Power of Attorney (DPOA)?
A durable power of attorney is a document you can create, giving another individual the power to act in your place and manage your financial, business, legal, or medical affairs if you cannot do so.
With this document, the person granting or giving the power is called the “principal.” The person receiving the power to act is called the “attorney-in-fact” or “agent.”
It is adequate when you choose when it’s signed or upon your incapacitation. Most significantly, it remains in effect even if you are incapacitated.
The power ends when you pass away or revoke or under the circumstances outlined in the document.
Definition of “Durable”
The term “durable” is defined in Section 102(2) of the UPOAA as:
“Durable,” with respect to a power of attorney, means not terminated by the principal’s incapacity.
One key element of the UPOAA is the default rule regarding durability. Under Section 104 of the UPOAA, a power of attorney is “durable unless it expressly provides that it is terminated by the incapacity of the principal.” That means a power of attorney will be effective beyond the principal’s incapacity.
It can be used for tax purposes to appoint someone to act on your behalf if you become incompetent or unable to act.
To authorize your DPOA to represent you in front of the IRS and take care of your taxes, you’ll need to fill out IRS Form 2848. This form includes important information such as your Social Security number, the name and mailing address of your representative(s), and a description of the matter(s) for which they are authorized to represent you. 
Durable Power of Attorney vs. General Power of Attorney
The difference between a Durable Power of Attorney and a Power of Attorney is that the former remains in effect even if you become incapacitated, while the latter does not.
- A durable power of attorney allows your agent to decide on your behalf even if you become incapacitated. For example, your agent can continue (or start) acting on your behalf if you’re diagnosed with dementia.
- A general power of attorney (non-durable) is no longer adequate if you become mentally incapacitated. For instance, if you have dementia, your agent will lose decision-making power.
The main difference is that DPOA remains effective even if you become mentally incompetent.
At the same time, the latter is only valid if you’re mentally competent.
This means that if you have a standard (non-durable) power of attorney and your mental capacity declines to a point where you are deemed mentally incompetent, a power of attorney expires. Your agent can no longer make decisions for you.
A durable power of attorney is your best bet if you need someone to make decisions for you in the long run.
But if you need someone to sign documents on your behalf for a specific transaction because you don’t want to or cannot appear in person, a non-durable power of attorney is more advisable.
What Rights Does a Durable Power of Attorney Have?
The rights your attorney-in-fact has under a durable power of attorney can vary, depending on your goals.
- Manage finances – You can give the attorney-in-fact the power to manage your finances, including your bank accounts, investments, real estate, and other property.
- Make medical decisions – You can also give the attorney-in-fact the power to manage your medical decisions. Finally, you can provide the attorney-in-fact power to control both aspects.
- Broad or limited powers –You can also give the attorney-in-fact broad or limited capabilities by restricting certain powers.
How to Get a Durable Power of Attorney
Here is everything you need to know:
Step 1 – Designate Your Agent(s)
Your agent can be a trusted family member, a close friend, or an attorney—basically, anyone you know and trust who will be responsible and act in your best interest.
They will have access to your financial information and can make medical decisions on your behalf.
You can name one or more individuals as agents, which can cause delays if the two agents must collaborate but cannot reach a consensus.
It’s also a good idea to designate successor or backup agents if the primary agent cannot act.
Step 2 – Choose What You Authorize Your Agent to Do
Determine and list the areas where you want to give your agent authority.
For the medical power of attorney, you might also want to think about what’s in your best interests, the treatment or medical care you wish to receive, and the medical records you want to share with your agent.
Step 3 – Draft Your Power of Attorney Form
Once you’ve chosen your agent, considering what they are authorized to do and how you will draft your documetn, it’s time to complete the form accordingly.
If you plan to use generic forms with prewritten clauses, ensure you agree with them before you sign your document.
Consider when you want the document to become effective.
The DPOA often becomes effective once the principal signs the document. Still, you can also decide if you want the document to become effective later or upon your mental incapacitation.
Remember to include language that clearly states your intentions that a power of attorney survives your mental incapacitation.
Step 4 – Check Signature and Notary Requirements in Your State
Make sure the form complies with your state’s laws.
Most states require durable power of attorney forms to be signed before a licensed notary public, and some need two witnesses to make it legally binding.
Step 5 – Keep a Copy of the Power of Attorney
It must not be filed with a court or government office to be valid.
However, you must keep a copy of the document with your other estate planning documents and give another copy to your agent or agents.
It’s also a good idea to share with stakeholders like your bank or doctor’s office.
Step 6 – Update the Document As Needed
If your needs and situation change, ensure they are reflected in a power of attorney. It is difficult to override a durable power of attorney after you’ve become incapacitated and will require court proceedings.
Some states have special requirements for notarizing a document granting durable power of attorney. It’s always advisable to follow your state’s rules when asked to notarize a signature on a document. You can find state signing requirements for all types of POA here.
|Alabama||Notary Public||§ 26-1A-105|
|Alaska||Notary Public||§ 13.26.600|
|Arizona||Notary Public and 1 Witness||§ 14-5501|
|Arkansas||Notary Public||§ 28-68-105|
|California||Notary Public or 2 Witnesses||§ 4402(c)|
|Colorado||Notary Public||§ 15-14-705|
|Connecticut||Notary Public and 2 Witnesses||§ 1-350d|
|Delaware||Notary Public and 1 Witness||§ 49A-105|
|Florida||Notary Public and 2 Witnesses||§ 49A-105|
|Georgia||Notary Public and 1 Witness||§ 10-6B-5|
|Hawaii||Notary Public||§ 551E-3|
|Idaho||Notary Public||§ 15-12-105|
|Illinois||Notary Public and 1 Witness||§ 755 ILCS 45/3-3|
|Indiana||Notary Public or 2 Witnesses||§ 30-5-4-1|
|Iowa||Notary Public||§ 633B.105|
|Kansas||Notary Public||§ 58-652(3)|
|Kentucky||Notary Public||§ 457.050|
|Maine||Notary Public||§ 5-905(1)
|Maryland||Notary Public and 2 Witnesses||§ 17–110|
|Massachusetts||2 Witnesses||§ 5-103
|Michigan||Notary Public or 2 Witnesses||§ 700-5501(2)|
|Minnesota||Notary Public||§ 523.01|
|Mississippi||Notary Public||§ 87-3-105|
|Missouri||Notary Public||§ 404.705(3)|
|Montana||Notary Public||§ 72-31-305|
|Nebraska||Notary Public||§ 30-4005|
|Nevada||Notary Public||§ 162A.220(1)|
|New Hampshire||Notary Public||§ 564-E:105|
|New Jersey||Notary Public||§ 46:2B-8.9|
|New Mexico||Notary Public||§ 45-5B-105|
|New York||Notary Public or 2 Witnesses||§ 5-1501B|
|North Carolina||Notary Public||§ 32C-1-105|
|North Dakota||No Statute||None|
|Ohio||Notary Public||§ 1337.25|
|Pennsylvania||Notary Public and 2 Witnesses||§ 5601(b)(3)|
|Rhode Island||Notary Public||§ 18-16-2
|South Carolina||Notary Public and 2 Witnesses||§ 62-8-105|
|South Dakota||Notary Public||§ 59-12-4
|Texas||Notary Public||§ 751.0021
|Utah||Notary Public||§ 75-9-105(1)|
|Vermont||Notary Public||14 V.S.A. § 4005|
|Virginia||Notary Public||§ 64.2-1603|
|Washington||Notary Public or 2 Witnesses||§ 11.125.050|
|West Virginia||Notary Public||§ 39b-1-105|
|Wisconsin||Notary Public||§ 244.05|
|Wyoming||Notary Public||§ 3-9-105|
Advantages and Disadvantages
- Continuity: Remains in effect even if you become incapacitated. This means that your agent can continue to manage your affairs on your behalf without the need for court involvement.
- Clear designation of powers: Helps prevent disputes between family members regarding the management of your affairs. By clearly designating an agent and outlining their powers, everyone involved will know who is responsible and what they are authorized to do.
- Convenience: Avoid the need for a court-appointed guardian or conservator. This can save time, money, and emotional stress for both you and your loved ones.
- Tailored to your needs: DPOAs can be customized to meet your specific needs. For example, you can grant limited powers for specific purposes or provide broad authority for various decisions.
- Privacy and control: DPOAs allow you to maintain a level of privacy regarding your personal and financial affairs. You can choose who has access to your information and who will be responsible for managing it.
- Difficulty revoking: Once you sign the document, it can be difficult to revoke or modify it. This can be a disadvantage if you change your mind about who you want to act as your agent or if you feel that your agent is not acting in your best interests.
- Potential for abuse: Granting someone else the authority to make decisions on your behalf opens the possibility of abuse. The appointed agent may act against your best interests or make decisions that you wouldn’t approve of.
- Lack of oversight: Once you’ve granted power of attorney, there may be limited oversight. Unless someone challenges the agent’s decisions, they may have significant control without regular checks and balances.
- Financial risk: Granting someone the authority to handle your financial affairs could potentially expose you to financial risk if the agent mismanages your assets or engages in unethical behavior.
- Dependence on the agent: If you become reliant on your agent for decision-making, you might lose some independence. It’s important to strike a balance and ensure that your wishes are still considered and respected.
Frequently Asked Questions
When Does a Durable Power of Attorney Come Into Effect?
In making a durable power of attorney, you can set the time when it becomes effective.
Thus, if you only wish the durable power of attorney to come into effect if you become incapacitated, you can stipulate that in the document itself.
When does a Durable Power of Attorney end?
You can revoke a durable power of attorney at any time if you are mentally sound simply by advising the attorney-in-fact of the matter. Some states have specific requirements for revoking a durable power of attorney.
A court can terminate a durable power of attorney if it finds that the attorney-in-fact is not acting in the principal’s best interests.
Also, a durable power of attorney will end at the principal’s death if the document specifies it has an expiration date.
A Durable POA form will only expire if:
- You create a Revoke a Power of Attorney
- You die
- It has an expiration date
- Your agent can’t fulfill their duties (and there’s no successor agent)
Keep in mind you can’t revoke it if you become incapacitated.
When Should I Use a Durable Power of Attorney?
A durable power of attorney allows the trusted individuals you appoint to make decisions for you when you cannot do so. A durable power of attorney can help keep your affairs in order if you have been diagnosed with a severe or debilitating sickness.
Even if you are in good health, a durable power of attorney can help manage your affairs and simplify medical decisions in the event of a catastrophe or accident, leaving you unable to make decisions.
Or if you are traveling or living overseas long-term, employed in a high-risk job, or an armed forces member deployed overseas.
Finally, if you are not married but have a partner, a durable power of attorney can give that individual the same powers as a spouse, enabling them to manage a property and make medical decisions.
You should use a DPOA if you’re:
- A senior citizen
- Scheduled to receive surgery
- Living or traveling long-term overseas
- At the risk of / have been diagnosed with a disease
- Employed in a high-risk job
- A member of the armed forces deployed overseas
Without this document, you may have to pursue court-appointed guardianship of an elderly parent or loved one who becomes incapacitated.
Can I Appoint More Than One Agent?
You can appoint more than one agent in your durable power of attorney as a co-agent. You can nominate successor agents if the original agent or agents cannot serve or can no longer fulfill their duties.
In addition, you could create several powers of attorney, each dealing with a specific aspect of your life and appointing a different attorney-in-fact for each. As a practical matter, that arrangement would be cumbersome.
Ultimately, you should find family members, friends, or trustworthy individuals whose judgment you can rely upon to fill this role.
Some experts recommend more than one agent in case one is unavailable or you need people with expertise in different areas.
Several methods allow you to do this:
- Successor durable power of attorney: You appoint an alternate agent if the primary agent is unavailable.
- A joint durable power of attorney: You appoint two agents collaborating on your behalf.
- Multiple durable powers of attorney: You opt for more than one durable POA and appoint a different agent with specific and limited powers for each.
Is My Agent Legally Liable for What They Do?
Generally, an agent under a durable power of attorney is not legally liable for the principal’s debts.
However, one needs to pay special attention when signing documents on behalf of the principal—agents should sign in a representative capacity on the principal’s behalf to avoid personal liability for debt or other financial affairs.
One common way to sign in a representative capacity is by adding a POA after the signature.
Like any other principal-agent relationship, the agent or attorney-in-fact must always act according to the instructions received in a power of attorney. The agent must also generally work in the best interests of the principal.
This is known legally as a “fiduciary” relationship. If the agent fails to follow instructions or does not act in the principal’s best interests, a court may find the agent legally liable for any misdeeds.
When Does a Durable Power of Attorney Expire?
As long as you are mentally sound, you can end a durable power of attorney anytime. In many states, you can verbally revoke a durable power of attorney by telling the attorney-in-fact you no longer wish them to act on your behalf.
In any event, you can also revoke a durable power of attorney in writing.
If you are not of sound mind, a court can terminate a durable power of attorney if it finds that the attorney-in-fact is not acting according to the instructions in a power of attorney or the principal’s best interests.
How Does a Durable Power of Attorney Work?
A durable power of attorney works by allowing you to appoint someone you trust to make decisions on your behalf, especially in situations where you are unable to make decisions for yourself.
This person, also known as your agent, can be granted the authority to manage your finances, healthcare, and/or personal affairs. It’s crucial to choose your agent carefully and communicate your wishes clearly to ensure that your wishes are carried out.
What’s the Difference Between Durable POA and Living Will?
The main difference between a durable power of attorney and a living will is their purpose. A durable power of attorney or a health care proxy designates another person to make medical decisions on your behalf if you become incapacitated and are unable to make decisions for yourself. In contrast, a living will specify your preferences for medical treatments, such as resuscitation, comfort care, and organ donation, if you become incapacitated.
Utilizing both a durable power of attorney and a living will creates an advance directive to ensure that your wishes for medical treatment are respected. It is important to choose an agent for your healthcare power of attorney who will use your living will as a guide to make healthcare decisions that align with your preferences.
Does a Durable Power of Attorney Include Medical Decisions?
A durable power of attorney is a document that grants your agent the authority to manage your finances or other personal affairs. However, a durable healthcare power of attorney grants an agent the power to make medical decisions on your behalf.